it ITEM first appeared in Pacific Forum and is reprinted with permission. Read the original here.
July 12 marked the 10th anniversary of the arbitral tribunal’s ruling in favor of the Philippines over its claims in the South China Sea — a ruling China ignored and which has become a footnote in the gradual degradation of the rules-based order.
Ten years later, we live in a very different world: one in which Russia has invaded and occupied parts of a major European nation, and one in which China has built a chain of heavily militarized, weaponized islands across one of the world’s most important maritime corridors—a corridor that carries roughly a third of the global sea.
The rule-based order is breaking down more and more, and like July 12th joint statement Of the 14 countries shown, its protection is partly from “coalitions of the willing”. But the list of signatories to the declaration is the most important story here: of the 14 governments that commemorated the decision, only one—the Philippines—is actually an ASEAN member state—something Chinese social media trolls trumpeted.
In 2013, when the Philippines asked the Permanent Court of Arbitration (PCA) to rule on historical rights and the source of maritime rights in the South China Sea, and on the legality of China’s conduct, international courts still seemed powerful – able to work through China’s bitter non-engagement in the process.
Beijing refused to send representatives to the arbitration or even to accept correspondence from the court’s judges, but this refusal was never an obstacle to the proceedings. Article 9 of Annex VII of UNCLOS is unambiguous: “The absence of a party or the failure of a party to defend its case shall not constitute a bar to the proceedings.”
On July 12, 2016, the PCA properly ruled that China’s non-participation could not be used to undermine the Philippines’ right to arbitration, and the court issued its decision on the broader questions raised by Manila.
That ruling did not grant “sovereignty” over any islands or features claimed by the Philippines — but it unambiguously dismantled China’s futile legal arguments underlying its claims to the South China Sea, claims that overlap with the exclusive economic zones of Vietnam, Malaysia, Brunei and Philippine Indonesia as much as the Philippines.
This has never been a bilateral dispute. It was, in fact, a case that the Philippines took on for all ASEAN claimant states.
For those familiar with China’s claims, Beijing has long argued — and continues to argue — that it holds “historical rights” over the South China Sea, promoted through the “nine-dash line” as the boundary of its “jurisdiction.” In 2009, China sent two notes verbales to the UN Secretary-General asserting “indisputable sovereignty over islands in the South China Sea,” attaching a copy of the nine-point map.
Any competent maritime legal adviser would have advised against such a submission: claims of “historical rights” are extremely weak in international law, and a set of lines on a map does not constitute a legal argument. By committing these claims to writing and submitting them to the UN, China discovered two things that should matter to every ASEAN capital, not just Manila.
First, by refusing to clarify what exactly it intended the nine-dotted line to denote, Beijing portrayed itself as an expansionist power, aiming to control an important geostrategic sea lane that crosses its territory. Second, it has shown itself willing to join “all-in” international legal regimes, such as UNCLOS, and then break their terms at will.
The United States, by contrast, has never ratified UNCLOS, wary of the obligations that ratification would impose; China readily signed, then rejected the parts it didn’t like. For ASEAN specifically, the second point should be more alarming: it means that no code of conduct, no framework, no bilateral memorandum that Beijing eventually signs with the bloc will compel it further than its preferences allow.
Each agreement, for Beijing, is little more than “a part waste paper.” This is less a sign that an alternative rules-based order is emerging than that the age of bare power is reasserting itself through the cracks of the old one, and ASEAN, as a bloc built on consensus and non-intervention, remains its softest target.
In 2016, the Permanent Court of Arbitration tore apart China’s two verbal notes, finding them “contrary” to the intent of UNCLOS, a convention that China had signed itself, and therefore “of no legal effect”. In short: the world’s leading maritime legal body had ruled that China’s claims were dead on arrival.
Beijing’s response was to conduct a media scare campaign against Manila and begin the construction of four large outposts, each equipped with a runway of about 10,000 feet, on Woody Island, Fiery Cross Reef, Mischief Reef and Subi Reef. The work continues today, increasingly at the expense of ASEAN member Vietnam. According to CSIS’s Asia Maritime Transparency Initiative, China is currently dredging a new outpost on Antelope Reef in the Paracel Islands, approximately 216 nautical miles from Da Nang.
With an estimated area of 1,490 hectares, the new outpost will become China’s largest in the South China Sea, with space for power plants, underground storage, coastal defense and anti-ship missile deployments, as well as extensive surveillance and electronic warfare facilities. It is a continuation of China’s broader strategy of territorial consolidation, pursued, deliberately, one claimant state at a time.
This, in miniature, is the root of ASEAN’s problem: Vietnam is the country with the most immediate stake in Antelope Reef, and Vietnam was not even among the 14 signatories yesterday. ASEAN’s position is meaningless in the face of this partial approach.
This is not an accident. It’s the model. ASEAN operates by consensus, and a bloc that includes members economically dependent on Beijing — Cambodia and Laos, chief among them — has repeatedly been able to issue a unified position on the South China Sea, dating back to the 2012 breakdown of the ASEAN Foreign Ministers’ Meeting in Phnom Penh, the first time in the organization’s history to produce a joint communiqué.
China understands this mechanism better than ASEAN members sometimes seem: a bloc that must agree unanimously can be neutralized by capturing or pressuring a single member. The result is that even a claimant state as exposed as Vietnam finds it easier to remain silent than to force the issue within ASEAN, leaving the defense of a judgment that vindicated the entire region to outside powers.
Yesterday, the United States joined 13 other countries in commemorating the 10th anniversary of the award. Only one of those 14 signatories was an ASEAN member state: the Philippines.
Next year, in August 2027, ASEAN will mark its 60th anniversary since the signing of its founding document: a moment to celebrate six decades of economic, cultural and diplomatic progress, but also one to reckon with the failure of the organization to live up to its founding promise to “promote peace and stability, through respect for justice, the rule of law of the United Nations and adherence to the United Charter”.
China’s response to the original price and yesterday’s joint statement are each a strong indication of where Beijing is headed. Long clothed in the position of a responsible global citizen, China is now attacking the norms and conventions of the postwar order—discarding them as relics, reshaping them, or hollowing them out from within.
Whatever its rhetoric, Beijing is not building an alternative rules-based system; its parallel institutions have a mixed history. What is clear is her preference for a hierarchy that runs from Beijing to its neighbors, negotiated one capital at a time, rather than with a bloc that can act together. And this is at the core of ASEAN’s problem.
John Hemmings (john@pacforum.org) is director of the Center for Homeland Security at the Henry Jackson Society and senior advisor to the Pacific Forum.
